Originally from: AAA Handbook on Construction Arbitration and ADR - 2nd Edition

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I. Introduction

Mediators serve a number of functions. One expert classified these functions as teaching, criticizing, supporting, probing and clarifying. Of these five functions, some experts believe that criticizing and teaching are least appreciated by the parties and that mediators should concentrate their efforts on probing and clarifying.

II. Joint Sessions and Caucuses

Some mediators think joint sessions are a waste of time and may be dispensed with because they usually consist of exchanges, sometimes acrimonious, of information and arguments that the parties have already exchanged ad nauseam. Others, however, say that a joint session should be kept going as long as it is making some progress. When the joint session breaks down, that is the time to call for a caucus.

During caucuses, parties may throw out vague dollar figures. Many experts say the mediator should determine whether a particular number exposed by a party is a genuine offer. If it is, the mediator should evaluate whether the communication of that number to the other party will advance the purposes of the mediation. As a neutral who must not take sides, the mediator should avoid reacting negatively to the size of the offer, even if it might be considered outrageous. To finesse the situation, the mediator might attempt to obtain the party’s agreement to go a different way, rather than communicate an outrageous offer to the other party.